In recent weeks there has been a question about the meaning of
the term "substantially identical" in New Jersey's assault firearms
law. The Legislature addressed this question in the provisions
of the Code of Criminal Justice, and despite the clarity of the
law, it is appropriate for the Attorney General to provide guidance
to the prosecutors in order to ensure that the law is administered
uniformly and effectively throughout the State. N.J.S.A. 52:17B-98.
I am directing the prosecutors, as chief law enforcement officers
of their respective counties, to share this guidance with local
police departments, who in turn should provide copies of this
memorandum to any member of the public who requests information
on assault firearms.

II.
Guidelines

New Jersey law lists firearms that are prohibited "assault firearms."
N.J.S.A. 2C:39-1w.(1). In addition, the law provides that the
term "assault firearm" includes, "Any firearm manufactured under
any designation which is substantially identical to any of the
firearms listed" in the law. N.J.S.A. 2C:39-1w.(2). Thus, a firearm
is an assault firearm if it is included on the list of banned
firearms or if it is manufactured under a different designation
than a firearm on the list but is "substantially identical" to
a specific listed firearm.

We believe "substantially identical" is clear by its plain meaning.
The Criminal Code provides that the statutes in the Code must
be read "according to the fair import of their terms." N.J.S.A.
2C:1-2c. The Criminal Code explains that where language may be
susceptible to different readings it must be construed to "give
fair warning of the nature of the conduct proscribed." N.J.S.A.
2C:1-2a.(4), c. Simply put, the phrase "substantially identical"
must be given its plain meaning, one that gives fair warning.

The term "substantial" means pertaining to the substance, matter,
material or essence of a thing. The term "identical" means exactly
the same. Hence, a firearm is substantially identical to another
only if it is identical in all material, essential respects. A
firearm is not substantially identical to a listed assault firearm
unless it is identical except for differences which do not alter
the essential nature of the firearm.

The following are examples of manufacturer changes that do not
alter the essential nature of the firearm: name or designation
of the firearm; the color of the firearm; the material used to
make the barrel or stock of the firearm; the material used to
make a pistol grip; a modification of a pistol grip. This is not
an exclusive list.

A semi-automatic firearm should be considered to be "substantially
identical," that is, identical in all material respects, to a
named assault weapon if it meets the below listed criteria:

A. semi-automatic rifle that has the ability to accept a detachable
magazine and has at least 2 of the following:

a
folding or telescoping stock;

a
pistol grip that protrudes conspicuously beneath the action
of the weapon;

a
bayonet mount;

a
flash suppressor or threaded barrel designed to accommodate
a flash suppressor; and

a
grenade launcher;

B.
a semi-automatic pistol that has an ability to accept a detachable
magazine and has at least 2 of the following:

an
ammunition magazine that attaches to the pistol outside
of the pistol grip;

a
shroud that is attached to, or partially or completely encircles,
the barrel and that permits the shooter to hold the firearm
with the nontrigger hand without being burned;

manufactured
weight of 50 ounces or more when the pistol is unloaded;
and

a
semi-automatic version of an automatic firearm; and,

C. a semi-automatic shotgun that has at least 2 of the following:

a
folding or telescoping stock;

a
pistol grip that protrudes conspicuously beneath the action
of the weapon;

a
fixed magazine capacity in excess of 5 rounds; and

an
ability to accept a detachable magazine.

III.
Inquiries from Private Citizens

Law enforcement officers should, whenever possible, attempt to
be helpful and to respond to inquiries concerning particular firearms.
Private citizens should also be encouraged to consult with their
own attorneys and, where necessary, referred to the Firearms Unit
of the Division of State Police.

IV.
Purpose and Effect of these Guidelines

In enforcing this law, prosecutors and police should remember
that an assault firearms offense requires proof that the defendant
knows he or she possesses an assault firearm, e.g., that the defendant
knows that the firearm is "substantially identical" to one of
the named assault weapons.

These guidelines should be followed by all county prosecutors
and all law enforcement officers in this State so that the State's
assault firearms laws will be uniformly enforced throughout the
State.